A provocative, unsponsored assessment of current and future legal, regulatory, marketplace, and cultural issues affecting telecommunications and information policy presented by Rob Frieden, Pioneers Chair and Professor of Telecommunications and Law, Penn State University

Wednesday, April 25, 2007

Much of the debate about broadband and next generation network development focuses on the alleged need for government to create incentives for carriers to invest. Ironically much of the excuses given for the disinclination to have invested emphasizes how government created disincentives, marketplace distortion and regulatory uncertainty.

So let me get this straight. The same person or corporation, with libertarian/deregulatory instincts, rails against government intervention as likely to fail even as they assert the need for incentive creation with a straight (if not disingenuous) face.

Let’s examine incentive creation, a government activity that has become so important that we now have a new word for it: incentivize, as in the FCC needs to incentivize broadband development in rural areas by expanding the universal service program.

With all this incentivization going on it’s no wonder that arbitrage and gaming opportunities abound. The most recent example lies in the realization by rural wireline telephone companies, particularly those entrepreneurial independent telephone companies in Iowa (see http://www.techdirt.com/articles/20070315/193857.shtml) that they can convert the universal service mission into cold cash. Because Congress and the FCC have created incentives for rural phone companies to wire up the hinterland, the crafty beneficiary of such incentives can earn extra cash by stimulating inbound traffic to the hinterland.

Brilliant! Funds designed to encourage telephone companies to serve expensive remote areas now flow more robustly into the coffers of the more creative incentive exploiters who offer outbound international long distance and conference calling all for the cost of the inbound call to rural Iowa. Wireless subscribers incur no additional charges for such calls made at nights and on weekends and cheap “postalized” long distance plans and calling cards offer 3-5 cents per minute calling any time of the day. The carriers handling the Iowa-bound call end up paying the Iowa telephone company as much as 7 cents a minute to terminate the call. Of course the call does not end ringing the telephone of some rural farmer in Iowa. It routes to a switch that provides second dial tone for outbound calling.

This clever money maker exploits the incentive to build out networks into the hinterland. Some of the outbound calling carriers, such as AT&T, have unilaterally decided to refuse to complete such calls. Unilaterally acting as judge, jury and executioner violates these carriers’ common carrier legal responsibilities. It also shows these carriers as asleep at the switch when the Iowa telephone company tariffed the extortionate 7 cent rate.

But most importantly the Iowa gambit shows that incentive creation has the very same potential to distort the marketplace and favor one group of stakeholders over others as the much more discussed disincentive creation.

Monday, April 23, 2007

You might say fuzzy science made me blog. I decided to create this blog in part because of proliferating undisclosed, sponsored research. Far too many academics and think tank affiliates “contribute” to a public policy debate thanks to an undisclosed benefactor who surely expects something back for the hundreds of thousands invested.

Thanks to that wonderful concept of plausible deniability the sponsored researcher can state with a straight face that he or she does not receive any direct financial support for the White Paper, law review article or legislative testimony that just happens to offer unqualified support for a particular stakeholder or group viewpoint.

The money gets laundered. A stakeholder supports a think tank’s general mission with a sizeable grant. In turn the think tank’s staff or affiliates just happens to come up—unsolicited for sure—with creative thinking about a public policy issue that resonates with the stakeholder’s political and public relations agenda. The stakeholder’s grant helps pay for the employees’ or affiliates’ income, albeit indirectly. Hence no direct quid pro quo. How convenient.

I refuse to believe that so many public policy initiatives in telecommunications policy, first announced through the writing of an academic or think tank affiliate, arose completely unsolicited. We can thank undisclosed, but sponsored research for such innovative rethinking of economics and the law as the Efficient Components Pricing “Rule” and the view that the Telecommunications Act of 1996, as implemented by the FCC, “confiscated” incumbent carrier property.

Research also can pursue a specific and narrow agenda, e.g., attempting to discredit the lawfulness and accuracy of work conducted in official forums such as the World Trade Organization. See Sidak and Singer, Überregulation without Economics: The World Trade Organization’s Decision in the U.S.-Mexico Arbitration on Telecommunications Services; http://law.indiana.edu/fclj/pubs/v57/no1/Sidak.pdf. The piece contained a disclaimer that the American Enterprise Institute takes no position on specific legislative, regulatory, adjudicatory, or executive matters. But the reader gets no disclosure whether or not TelMex provided AEI any funding before or after this legal scholarship made its way into print.

About Me

Rob Frieden serves as Pioneers Chair and Professor of Telecommunications and Law at Penn State University.He also provides legal, management and market forecasting consultancy services and has written four books, most recently Winning the Silicon Sweepstakes: Can the United States Compete in Global Telecommunications published by Yale University Press. Rob has written over one hundred articles in law reviews and telecommunications policy journals and has provided commentary in a variety of trade periodicals. He updates a major communications treatise: All About Cable and Broadband (Law Journal Press).

Rob has held senior policy making positions in international telecommunications at the United States Federal Communications Commission and the National Telecommunications and Information Administration.In the private sector, he practiced law in Washington, D.C., and served as Assistant General Counsel at PTAT System, Inc. where he handled corporate, transactional and regulatory issues for the nation's first private undersea fiber optic cable company. Professor Frieden holds a B.A., with distinction, from the University of Pennsylvania (1977) and a J.D. from the University of Virginia (1980).